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Monday, August 24, 2015

“In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents.”


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.6465 OF 2015
               (Arising out of S.L.P.(Civil) No.9266 of 2012)

Madras Institute of Development
Studies and Another                              …..Appellant(s)

Dr. K. Sivasubramaniyan and others               ..Respondent(s)


                        CIVIL APPEAL No.6466 OF 2015
                (Arising out of SLP (Civil) No.10022 of 2012)

Dr. S. Anandhi and others                     ….Appellant(s)


Dr. K. Sivasubramaniyan and others                ..Respondent(s)



Leave granted.

2.    These appeals by special leave are directed against the  Judgment  and
order dated 09.01.2012 passed by the High Court of Judicature at  Madras  in
W.A. No. 167 of 2008, whereby the order passed by the learned  Single  Judge
dismissing the writ petition  filed  by  respondent  No.1  herein  has  been
reversed and the  order  dated  14.8.2006  of  the  Appellant  No.-Institute
approving appointment of Respondent Nos. 2 to 6 (namely Dr. S. Anandhi,  Dr.
Brinda Viswanathan, Dr. L. Venkatachalam,  Dr.  Ajit  Menon  and  Dr.  Kripa
Ananthpur) to the post of Associate Professor has been quashed.

3.    The facts of the case lie in a narrow compass.

4.     The  appellant  Institute  issued  an   advertisement   calling   for
applications  for  the  positions  of  Professor,  Associate  Professor  and
Assistant Professor.  The said advertisement contained a description of  the
three qualifications required to be possessed  by  the  candidate.   Several
persons including respondent No.1-writ petitioner submitted application  for
appointment to the post of Associate Professor.  The  short-listing  of  the
candidates was done by the Director of the Institute  in  consultation  with
the  Chairman  after  informal  consultation  with  senior  Professors   for
evolving the criteria for short-listing of the  candidates.   The  Selection
Committee consisting of three noted Social Scientists as contemplated  under
the Rules conducted interviews  and  recommended  a  panel  of  five  names.
Thereafter, the Executive Council by  Order  dated  14.8.2006  approved  the
appointment  of  various  persons  to  the  posts  of  Professor,  Associate
Professor and Assistant Professor.  Since the Institute had  advertised  for
three posts, the first three i.e. respondent nos. 2, 3 and 4 were  initially
approached for the post of Associate Professor.

5.    The respondent No.1-writ petitioner challenged the aforesaid  decision
dated 14.8.2006 on the ground  inter alia  that the selection was  not  done
strictly as per the qualifications  mentioned in the advertisement and  that
the respondent No.1-writ petitioner having fulfilled  all  the  requirements
ought to have been selected to one  of  the  three  vacancies  of  Associate
Professor.  It was also alleged by the respondent No.1-writ petitioner  that
there has been infraction of the recruitment rules.

6.    The appellant institute denied and disputed the  allegation  regarding
the infraction of the recruitment rules and further denied and disputed  the
allegations of irregularities in the selection process.

7.    The learned Single Judge of the Madras High Court dismissed  the  writ
petition by a reasoned judgment on two grounds.  Firstly, it was  held  that
the writ petition was not maintainable inasmuch as the Institute  is  not  a
“State” within the meaning of Article 12 of the Constitution of India.   The
learned Single Judge secondly held that there is no discrepancy with  regard
to the qualification mentioned in the advertisement and the  service  rules.
Finally, learned Single Judge  held  that  respondent  No.1-writ  petitioner
having taken part in the selection process  without  raising  any  objection
cannot challenge the selection process after being declared unsuccessful  by
not including his name in the Selection List.

8.    Aggrieved by the said judgment,  the  respondent  preferred  the  writ
appeal before the Division Bench of the Madras  High  Court.   The  Division
Bench allowed the appeal and  reversed  the  order  passed  by  the  learned
Single Judge.  On  the  issue  of  maintainability  of  writ  petition,  the
Division Bench in the impugned order held that the  duties  being  performed
by the appellant-Institute  are  in  the  nature  of  public  function  and,
therefore, it would come within the ambit of ‘State’  under  Article  12  of
the Constitution of India.  The Division Bench on  the  merit  of  the  case
came to the conclusion that there is a variation in the  advertisement  from
the prescribed rules and as such the entire selection  process  is  vitiated
in law.  According to the Division Bench, the advertisement  issued  by  the
Institute and the constitution of Selection Committee are  totally  contrary
to  the  Rules,  consequently,  the  order  dated  14.8.2006  approving  the
appointment of the respondent is liable to be quashed.

9.    Hence, the present appeals by special leave.

10.   We have heard learned counsel appearing for  the  appellants  and  the
contesting respondents including the selected candidates.

11.    Mr.  N.L.  Rajah,  learned  counsel  appearing  for  the   appellant-
Institute, assailed the judgment passed by the  Division  Bench  on  various
grounds. On the question of maintainability of the  writ  petition,  it  was
submitted that the appellant-Institute was not created by  any  statute.  It
was founded as a trust and no part of the  corpus  of  the  Institution  was
held by the Government.  The participation of the State in  the  affairs  of
the Institution   is not under any  special  statute.  The  Division  Bench,
therefore, has not correctly appreciated the facts and the law while  coming
to the conclusion that the appellant Institute is a State.

12.   Mr.  Rajah,  learned  counsel  further  contended  that  although  the
grievance of the writ petitioner is that he has not  been  selected  but  no
relief has been prayed to  consider  him  to  the  said  post.   The  relief
claimed in the writ  petition  is  only  to  quash  the  decision  by  which
aforesaid respondents have been selected.

13.   Lastly, learned counsel submitted that the respondent writ  petitioner
participated in  the  selection  process  without  challenging  the  alleged
variance in the advertisement and the  rules  and  without  challenging  the
constitution of the Committee.  He  cannot  thereafter  challenge  the  same
after being declared unsuccessful for the said post.

14.   On the other hand, Ms. V. Mohana,  learned  senior  counsel  appearing
for the respondent writ petitioner, supported the finding  recorded  by  the
Division Bench of the  High  Court.   Learned  counsel  contended  that  the
qualifications prescribed in the  advertisement  are  totally  in  adherence
with the Rules.  According to the learned  counsel,  the  entire  proceeding
for appointment is vitiated by reason of variance in the  advertisement  and
the rules and also irregularity in the constitution  of  the  Committee  who
conducted interview for selection of the candidates.

15.   Indisputably, the Madras Institute of Development  Studies  (MIDS)  is
governed by its Faculty Recruitment Rules, 2001.  The  Rules  apply  to  the
selection and appointment of persons to  the  post  of  Assistant  Professor
(Research Associates), Associate Professor (Fellow)  and  Professor  we  are
here concerned with the qualifications required for appointment of a  person
to the post of Associate Professor. The Rules read as under:-

“Associate Professor (Rule)
Good academic record with a doctoral degree  or  equivalent  published  work
with five years of experience of teaching and/or research.”

16.   The qualification mentioned for the post  of  Associate  Professor  in
the advertisement reads as under:-

“Associate Professor (ADVT)

Good academic record with a doctoral degree  in  Social  Sciences,  with  at
least 5 (five) published papers in reputed national/international  journals/
edited volume- or equivalent thereof- and  experience  of  research/teaching
at University/national level research institutions.”

17.   From a reading of the necessary qualifications mentioned in the  Rules
and the advertisement, it is manifest that a  candidate  must  have  a  good
academic  record  with  a  doctoral  degree  with  5  years  experience   in
research/teaching at University or National level research Institute.

18.   The contention of the respondent no.1 that the  short-listing  of  the
candidates was done  by  few  professors  bypassing  the  Director  and  the
Chairman does not appear to  be  correct.  From  perusal  of  the  documents
available  on  record  it appears that short-listing of the  candidates  was
done by the Director in consultation  with  the  Chairman  and  also  senior
Professors.  Further it appears  that  the  Committee  constituted  for  the
purpose of selection consists of eminent Scientists, Professor  of  Economic
Studies and Planning and other members.  The integrity of these  members  of
the Committee has not been doubted by the respondent- writ  petitioner.   It
is well settled that the decision of  the  Academic  Authorities  about  the
suitability of a candidate to be  appointed  as  Associate  Professor  in  a
research institute cannot normally be examined by the High Court  under  its
writ jurisdiction.  Having  regard  to  the  fact  that  the  candidates  so
selected  possessed  all  requisite  qualifications  and   experience   and,
therefore, their appointment cannot be questioned on the ground of  lack  of
qualification and experience.  The High Court ought not to  have  interfered
with the decision of the Institute in appointing respondent nos. 2 to  4  on
the post of Associate Professor.

19.   Be that as it may, the respondent, without raising  any  objection  to
the alleged variations in the contents of the advertisement and  the  Rules,
submitted his application and  participated  in  the  selection  process  by
appearing before the Committee of experts.  It was only  after  he  was  not
selected for appointment, turned around and challenged  the  very  selection
process.  Curiously enough, in the writ petition the only relief sought  for
is to quash the order of appointment without seeking any relief  as  regards
his candidature and entitlement to the said post.

20.   The question as to whether a person who consciously takes part in  the
process of selection can turn around and question the  method  of  selection
is no longer res integra.

21.   In Dr. G. Sarana  vs.  University of Lucknow &  Ors.,   (1976)  3  SCC
585, a similar question came for consideration before a three  Judges  Bench
of this Court where the fact was that  the petitioner  had  applied  to  the
post of Professor of Athropology   in  the  University  of  Lucknow.   After
having appeared before the Selection Committee but on  his  failure  to  get
appointed, the petitioner rushed to the High  Court  pleading  bias  against
him of the three experts in  the  Selection  Committee  consisting  of  five
members.  He also alleged  doubt  in  the  constitution  of  the  Committee.
Rejecting the contention, the Court held:-

“15. We do not, however, consider it necessary in the  present  case  to  go
into the question of the reasonableness of bias or real likelihood  of  bias
as despite the fact that the appellant knew all the relevant facts,  he  did
not before appearing for the interview or  at  the  time  of  the  interview
raise even his little finger  against  the  constitution  of  the  Selection
Committee. He seems to have voluntarily appeared before  the  committee  and
taken a chance of having a favourable recommendation from  it.  Having  done
so, it is not now open to him to turn round and  question  the  constitution
of the committee. This view gains strength from a decision of this Court  in
Manak Lal’s case where in more or less similar circumstances,  it  was  held
that the failure of the appellant to take the identical plea at the  earlier
stage of the proceedings created an effective bar  of  waiver  against  him.
The following observations made therein are worth quoting:
“It seems clear that the appellant wanted to  take  a  chance  to  secure  a
favourable report from the tribunal which was constituted and when he  found
that he was confronted with an unfavourable report, he  adopted  the  device
of raising the present technical point.”

22.   In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3 SCC 486,  similar
view has been reiterated by the Bench which held that:-

“9. Before dealing with this contention, we must keep in  view  the  salient
fact that the petitioners as well as the  contesting  successful  candidates
being respondents concerned herein, were all found eligible in the light  of
marks obtained in the written test, to be eligible to  be  called  for  oral
interview. Up to this stage there is no dispute  between  the  parties.  The
petitioners also appeared at the oral interview  conducted  by  the  Members
concerned of the Commission who interviewed the petitioners as well  as  the
contesting respondents concerned. Thus the petitioners took a chance to  get
themselves selected at the said oral interview. Only because  they  did  not
find themselves to have emerged successful as a  result  of  their  combined
performance both at written test and oral interview, they  have  filed  this
petition. It is now well settled that if  a  candidate  takes  a  calculated
chance and appears at the interview, then, only because the  result  of  the
interview is not palatable to him, he cannot  turn  round  and  subsequently
contend that the process of interview was unfair or the Selection  Committee
was not properly constituted. In the case of Om Prakash Shukla  v.  Akhilesh
Kumar Shukla1 it has been clearly laid down by  a  Bench  of  three  learned
Judges of this Court that when the petitioner appeared  at  the  examination
without protest and when he found that he would not succeed  in  examination
he filed a petition challenging the said examination, the High Court  should
not have granted any relief to such a petitioner.

23.   In Manish Kumar Shahi vs. State of Bihar,  (2010)  12  SCC  576,  this
Court reiterated the principle  laid  down  in  the  earlier  judgments  and

“We also agree with the High Court that  after  having  taken  part  in  the
process of selection knowing fully well that more than 19% marks  have  been
earmarked for viva voce test, the petitioner is not  entitled  to  challenge
the criteria or process of selection.  Surely, if the petitioner’s name  had
appeared in the merit list, he would not have even  dreamed  of  challenging
the selection.  The petitioner invoked jurisdiction of the High Court  under
Article 226 of the Constitution of India only after he found that  his  name
does not figure in the merit list prepared by the Commission.  This  conduct
of the petitioner clearly disentitles him  from  questioning  the  selection
and the High Court did not commit any error by  refusing  to  entertain  the
writ petition.”

24.   In the case of Ramesh Chandra Shah and  others   vs.  Anil  Joshi  and
others, (2013) 11 SCC 309, recently a Bench  of  this  Court  following  the
earlier decisions held as under:-

“In view of the propositions laid down in  the  above  noted  judgments,  it
must be held that by having taken part in  the  process  of  selection  with
full knowledge that the recruitment was being made under the General  Rules,
the respondents had waived their right to question the advertisement or  the
methodology adopted by the  Board  for  making  selection  and  the  learned
Single Judge and the Division Bench of the High Court committed grave  error
by entertaining the grievance made by the respondents.”

25. So far as the finding recorded  by the Division Bench  on  the  question
of maintainability of the writ petition on the  ground  that  the  appellant
Institute  is  a  ‘State’   within  the  meaning  of  Article  12   of   the
Constitution, we are not bound to go  into  that  question,  which  is  kept

26.   Taking into consideration the entire facts of the  case  and  the  law
laid down by this Court in a catena of decisions, we  are  of  the  definite
opinion that the Division Bench has committed grave error in law by  passing
the impugned judgment reversing the  order  passed  by  the  learned  Single

27.   We, therefore, allow these appeals, set aside  the  impugned  judgment
and order passed by the Division Bench in Writ Appeal  No.167  of  2008  and
hold that the writ petitioner-respondent has no merit in the  case  inasmuch
as there is no illegality in the decision  dated  14.08.2006  taken  by  the
appellant-Institute for appointment of aforesaid respondent nos. 2 to  6  to
the post of Associate Professor.

                                                                (M.Y. Eqbal)

                                                               (Arun Mishra)
New Delhi
August 20, 2015

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